If the bill now before us, which goes no further than to secure civil rights to the freedmen, cannot be passed, then the constitutional amendment proclaiming freedom to all the inhabitants of the land is a cheat and a delusion.
The floor and galleries of the Senate Chamber were crowded during the delivery of the speech and the roll-call followed immediately, resulting: yeas 33, nays 15, more than two thirds. The closing scene was thus described in a Washington letter to the Nation, April 12:
After three days of extremely ardent debate signalized by a speech of singular cogency and power from Senator Trumbull, the father of the bill, the vote was reached about 7 o'clock on Friday evening. When the end of the roll was reached and Vice-President Foster announced the result, nearly the whole Senate and auditory were carried off their feet and joined in a tumultuous outburst of cheering such as was never heard within those walls before.
The veto of the Civil Rights Bill and the struggle over its passage the second time precipitated the exciting contest at the polls in the autumn of 1866. In that campaign Trumbull held the foremost position in the Republican column. Whether it was possible to avoid the conflict we cannot now say. It was most desirable that the party in power should march all one way, and hence that the President should respond to the friendly overtures of the leaders in Congress. When he found that he could not approve the two bills that the Senator had placed in his hands for examination, he ought to have sent for him and pointed out his objections and at all events expressed regret that he could not concur with him in the particulars where they disagreed. Then there might have been mutual concessions leading to harmony. In any event, there would have been no sting left behind, no hard feeling, no sense of injury, and perhaps no rupture in the party. That was not Johnson's way. He lacked savoir faire. He was combative by nature. He not only made personal enemies unnecessarily, but he alienated thousands who wished to be his friends.91 "Many persons," says a not unfriendly critic, "whose feelings were proof against the appeals made on behalf of the freedmen and loyalists were carried over to the side of Congress by sheer disgust at Johnson's performances. The alienation, by the President, of this essentially thoughtful and conservative element of the Northern voters was as disastrous and inexcusable as the alienation of those moderate men in Congress whom he had repelled by his narrow and obstinate policy in regard to the Freedmen's Bureau and Civil Rights Bills. It was again demonstrated that Andrew Johnson was not a statesman of national size in such a crisis as existed in 1866."92
On the other hand, it must be admitted that Johnson was within his constitutional right in vetoing the bills without previously consulting anybody in Congress.
The Civil Rights Act came before the Circuit Court of the United States twice, soon after it was enacted, and in both instances was held to be constitutional. The circuit courts were then presided over by Justices of the Supreme Court. In the case of United States v. Rhodes, Seventh Circuit, District of Kentucky, 1866, before Justice Swayne, the act was pronounced constitutional in all its provisions, and held to be an appropriate method of exercising the power conferred on Congress by the Thirteenth Amendment.
The other case was the Matter of Turner, Fourth Circuit, Maryland, October Term, 1867, before Chief Justice Chase. This case was submitted to the court without argument. The Chief Justice expressed regret that it was not accompanied by arguments of counsel, but he decided that the act was constitutional and that it applied to all conditions prohibited by it, whether originating in transactions before, or since, its enactment.93
If either of these cases had been taken to the Supreme Court on appeal, at that time, the Civil Rights Act of 1866 would doubtless have been upheld by that body; yet in October, 1882, the court held by unanimous vote that none of the latest amendments of the Constitution (the Thirteenth, Fourteenth, and Fifteenth) did more than put prohibition on the action of the states. No state should have slavery; no state should make any law to abridge the privileges and immunities of citizens of the United States; no state should deny the right of voting by reason of race, color, or previous condition of servitude. The power of Congress to go into the states to enforce the criminal law against individuals had not been granted in any of these amendments. It could not be affirmed that the second section of the Thirteenth Amendment gave power to Congress to legislate for the states as to other matters than actual slavery. But the Civil Rights Act applied to all the states—to those where slavery had never existed as well as to those where it had been recently abolished.94
The act which the court in October, 1882, pronounced unconstitutional was the Anti-Ku-Klux Act of 1871. Trumbull himself spoke and voted against that act believing it to be unconstitutional, as we shall see later. He drew the line somewhere between the two acts. The judges participating in the decision in the Harris case were Chief Justice Waite and Associate Justices Miller, Bradley, Woods, Gray, Field, Harlan, Matthews, and Blatchford.
One year later the court held that the Equal Rights Act of March 1, 1875, which gave to all persons full and equal enjoyment of accommodations and privileges of inns, public conveyances, theatres, and other places of public amusement, common schools and public institutions of learning or benevolence supported in whole or in part by general taxation, was unconstitutional. The Supreme Court still consisted of the Justices above named.95 It held that the Thirteenth Amendment of the Constitution related only to slavery and its incidents and that the Fourteenth Amendment was merely prohibitory on the states; that is, that it did not confer additional powers upon Congress, but merely forbade discriminating acts on the part of the states. The opinion of the court was delivered by Justice Bradley. The only dissenting opinion was given by Justice Harlan, of Kentucky, who held that the Thirteenth Amendment of the Constitution was not restricted to the prohibition of slavery, but that it conferred upon Congress the power to make freedom effectual to the former victims of slavery. He said:
The Thirteenth Amendment, it is conceded, did something more than to prohibit slavery as an institution resting upon distinctions of race and upheld by positive law. My brethren admit that it established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than the exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution and then remit the race, theretofore held in bondage, to the several states for such protection in their civil rights, necessarily growing out of freedom, as those states in their discretion might choose to provide? Were the states, against whose protest the institution was destroyed, to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which by universal concession inhere in a state of freedom? Had the Thirteenth Amendment stopped with the sweeping declaration in its first section against the existence of slavery and involuntary servitude, except for crime, Congress would have had the power by implication, according to the doctrines of Prigg v. Commonwealth of Pennsylvania, repeated in Strauder v. West Virginia, to protect the freedom established and consequently to secure the enjoyment of such civil rights as were fundamental in freedom. That it can exert its authority to that extent is made clear, and was intended to be made clear, by the express grant of such power contained in the second section of the Amendment.
The question whether the Civil Rights Act of 1866 was or was not constitutional never came squarely before the Supreme Court on a test case, but, as we have seen, other acts analogous to it did come before that tribunal in such a way that the authority of the court must be construed as adverse to it. My own thought is that the dissenting opinion of Mr. Justice Harlan above quoted is worth more than all the other literature on this subject that the books contain.
The autumn elections of 1866 returned a larger majority in Congress against President Johnson than had been there before. The result in Illinois was the reëlection of Trumbull as Senator by the unanimous vote of the Republican legislative caucus, although there were three major-generals of the victorious Union army (Palmer, Oglesby, and Logan) competing for that position, all of whom reached it later.
Trumbull sustained Johnson until the latter vetoed the Civil Rights Bill. He believed that the freedom of the emancipated blacks was put in peril by this action of the President, and he gave all of his energies to the task of passing the bill over the veto and sustaining it before the people. In this he was successful, but the avalanche of public opinion thus started did not stop with the defeat of Johnson in the election of 1866. It carried the control of the Union party out of the hands of the conservatives and gave the reins of leadership to Sumner, Stevens, and the radical wing. Trumbull followed this lead till the impeachment of Johnson took place, when he halted and saved Johnson at the expense of his own popularity, and he never regretted that he had done so.
A distant echo of the Civil Rights controversy reached the Illinois Senator from the state of Georgia, where he had been a school-teacher thirty years earlier. The correspondence is introduced here as a corrective, in some part, of the erroneous opinion that Trumbull was a man of cold and unfeeling nature:
Morgan [Ga.], May 17th [1866].
Hon. Lyman Trumbull:
Dear Sir: Truth seems strange, but, stranger still appears the fact, that after a lapse of thirty years, I should offer you a feeble acknowledgment of the gratitude, and high respect I have ever cherished for you. It was my good fortune to enjoy, in Greenville, for nearly three years, the advantage of your profound teachings; and, in later life, when adverse circumstances compel me to impart those lessons, and the hallowed influence of that instruction, to others, I award to you the full meed of praise. You cannot imagine the satisfaction I experience, when my eye turns to the many eloquent addresses you deliver before Congress; but as there lurks beneath the most beautiful rose, thorns that inflict deep wounds, so your avowed animosity to us casts a gloom over those delightful emotions. Is there no delightful thrill of association still lingering in your bosom, when memory reverts to your sojourn among us? Is there no period in that long space, around which fond retrospection can joyfully flutter her wings, and crush out the large drops of gall that have been distilled into your cup? I think you, and you alone, have the power and influence to arrest the mighty tide that threatens to overwhelm us. Can you not forget our past delinquencies, to which, I confess, we have been too prone, and remember only the little good you discovered? I often make special inquiries after you, and was much interested in an account given by an old Southern member. As I had still in my mind's eye your tall and erect form, my surprise was great, indeed, to be told that your form was not so straight, and that you used spectacles. I have failed in the proper place to mention my name, "Fannie Lowe," the most mischievous girl of the school. I married a gentleman from Mobile, who lived eight years after the union. He fell a victim to cholera, fourteen years since, during its prevalence in New Orleans. It was my great misfortune to lose my daughter, just as the flower began to expand and promise hope and comfort for my old age. In conclusion, I will be delighted to hear from you, and by all means send me your photograph. My kindest regards to your dear ones, and accept the warmest wishes of
Mrs. F. C. Gary.
Morgan, Calhoun Cy., Georgia.
United States Senate Chamber,
Washington, June 27, 1866.
My dear Mrs. Gary: I was truly grateful to receive yours of the 17th ult., and to know that after the lapse of thirty years I was not forgotten by those who were my pupils. I remember many of them well, and for all have ever cherished the kindest of feelings and the best of wishes. It pains me, however, to think that you and probably most of those about you, including those once my scholars, should so misunderstand me and Northern sentiments generally. How can you, my dear child,—excuse the expression, for it is only as a school-girl I remember Fannie Lowe,—how can you, I repeat, accuse me of entertaining feelings of "animosity" and of the bitterness of "gall" towards you or the South?… Towards the great mass of those engaged in the rebellion the North feels no animosity. We believe they were induced to take up arms against the Government from mistaken views of Northern sentiment brought about by ambitious and wicked leaders, and those political leaders we do want, at least, to exclude from political power, if nothing more, till loyal men are protected and loyalty is respected in the rebellious districts. It is in the power of the Southern people to have reconstruction at once, and the restoration of civil government, complete, if they will only put their state organizations in loyal hands, elect none but loyal men to office, and see that those who were true to the Union, during the war, of all classes, are protected in their rights. I ask you, in all candor, till the disloyal of the South are willing to do this, ought they to complain if they are subjected to military control? I enclose you, as requested, a couple of photographs, which you will hardly recognize as of the young man whom you knew thirty years ago. The one without a beard was taken three or four years since; the other, this year. My family consists of a wife and three boys, the eldest twenty years of age.
Please remember me to any who once knew me at Greenville, for all of whom I cherish a pleasant remembrance; and believe me your sincere friend,
Lyman Trumbull.
CHAPTER XVIII
THE FOURTEENTH AMENDMENT
While the events in the preceding chapter were transpiring, a joint committee on Reconstruction were making an inquiry into the condition of the ex-Confederate States in order to determine whether they or any of them were entitled to immediate representation in Congress. It consisted of Senators Fessenden, Grimes, Harris, Howard, Williams, and Johnson, and Representatives Stevens, Washburne, of Illinois, Morrill, of Vermont, Bingham, Conkling, Boutwell, Blow, Rogers, and Grider. Senator Reverdy Johnson and Representatives Rogers and Grider were Democrats. All the others were Republicans. There was a preponderance of conservatives on the committee. Senator Fessenden was the chairman, and his selection for the place marked him as princeps senatus in the estimation of his colleagues.
While the Civil Rights Bill was pending in the House, we have seen that Bingham, of Ohio, made a speech against it and voted against it, holding it to be unconstitutional. He had supported the Freedmen's Bureau Bill because it applied only to states in the inchoate condition which then existed. It was to be inoperative in any state, when restored to its constitutional relations with the Union. The Civil Rights Bill, on the other hand, was to apply to the whole country, North and South, without limit as to time, and to affect the civil and criminal code of every State Government. He held that there was no constitutional warrant for this, either in the Thirteenth Amendment or elsewhere. In order to cure the supposed defect, Bingham proposed to the Reconstruction Committee a new constitutional amendment in these words:
The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states, and to all persons in the several states equal protection in the rights of life, liberty, and property.
This was agreed to by the committee, but before it was reported to the House, Stevens presented a series of amendments consisting of five sections which had been prepared by Robert Dale Owen, a distinguished publicist, who was not a member of the Congress. This series had met Stevens's approval, and after some delay and some changes it was adopted by the committee. Bingham then withdrew his own proposed amendment and offered the following in place of it, which was adopted as section one:
No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
The difference between this provision and the first one proposed by Bingham was the whole difference between giving Congress power to pass laws for the administration of justice in the states and merely prohibiting the states from making discriminations between citizens. There was no definition of citizenship in the amendment as reported by the joint committee. Apparently they relied upon the Civil Rights Act, which had been passed over the President's veto, to supply that definition, but shortly before the final vote was taken in the Senate, Howard, who had charge of the measure in the temporary illness of Fessenden, proposed the following words to be placed at the beginning of the first section.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
The reason for adopting this clause was to validate the corresponding part of the Civil Rights Act and put it beyond repeal, in the event that the Republicans should at some future time lose control of Congress.
In addition to the first section, as shown above, the amendment provided that Representatives should be apportioned among the several states according to population, but that when the right to vote was denied in any state to any of the male inhabitants who were twenty-one years of age and citizens of the United States, except for rebellion or other crime, the representation of such state in Congress and the Electoral College should be proportionately reduced. Also that no person should hold any office under the United States or any state who, having previously taken an oath to support the Constitution of the United States, had engaged in insurrection or rebellion against the same, but that Congress might, by a two-thirds vote, remove such disability. Also that the validity of the public debt of the United States should not be questioned, but that no debt incurred in aid of insurrection or rebellion should ever be paid by the United States or any state. The concluding section provided that Congress should have power to enforce by appropriate legislation the provisions of the article.
The Fourteenth Amendment passed the Senate June 8, by 33 to 11, and the House June 13, by 138 to 36. Sumner had opposed it bitterly in debate because it dodged, as he said, the question of negro suffrage; but when the vote was taken he recorded himself in the affirmative.
The report of the committee giving the reasons for their action was submitted on the 18th of June. It held that the seceding states, having withdrawn from Congress and levied war against the United States, could be restored to their former places only by permission of the constitutional power against which they had rebelled acting through all the coördinate branches of the Government and not by the executive department alone.
If the President [it said] may, at his will and under his own authority, whether as military commander, or chief executive, qualify persons to appoint Senators and elect Representatives, and empower others to elect and appoint them, he thereby practically controls the organization of the legislative department. The constitutional form of government is thereby practically destroyed, and its powers absorbed by the Executive. And while your committee do not for a moment impute to the President any such design, but cheerfully concede to him the most patriotic motives, they cannot but look with alarm upon a precedent so fraught with danger to the Republic.
This conclusion was logical but misleading. The danger to the Republic lay not in the absorption of powers by the Executive, but in the prolongation of chaos, in dethroning intelligence, and arming ignorance in the desolated districts of the South.96
Stevens also reported a bill "to provide for restoring the states lately in insurrection to their full political rights." It recited that whenever the Fourteenth Amendment should become a part of the Constitution, and any state lately in insurrection should have ratified it and conformed itself thereto, its duly elected Senators and Representatives would be admissible to seats in Congress. This bill was not acted on, but lay on the table of each house awaiting the action of the Southern States on the proposed amendment.
On July 23, the two houses adopted a preamble and joint resolution admitting Tennessee to her former relations to the Union. The preamble recited that that state had ratified the Thirteenth and Fourteenth Amendments to the Constitution. There were only four negative votes on the Tennessee bill: Brown and Sumner, Republicans, and Buckalew and McDougall, Democrats. The President signed the bill, but he added a brief message explaining that his reason for doing so was that he desired to remove every cause of further delay, whether real or imaginary, to the admission of the Representatives of Tennessee, but he affirmed that Congress could not rightfully make the passage of such a law a condition precedent to such admission in the case of Tennessee, or of any other state.
The next event of importance in the controversy over Reconstruction was the National Union Convention held in Philadelphia on the 14th of August. It was composed of delegates from all the states and territories, North and South, who sustained the President's policy and acquiesced in the results of the war, including the abolition of slavery. This came to be known as the "Arm-in-Arm Convention" as the procession leading to the platform was headed by two delegates, one from Massachusetts and one from South Carolina, walking together with their arms joined. The signers of the call embraced the names of A. W. Randall, ex-governor of Wisconsin, Senators Cowan, Doolittle, Fowler, Norton, Dixon, Nesmith, and Hendricks, and ex-senator Browning, then Secretary of the Interior. The convention itself was eminently respectable in point of numbers and character. It was presided over by Senator Doolittle, and the chairman of its Committee on Resolutions was Senator Cowan. The resolutions adopted were ten in number and were faultless in principle and in expression. They were conveyed to the President by a committee of seventy-two persons. The effect of this dignified movement was offset and neutralized in large part by one paragraph of the President's reply to the presentation speech, namely:
We have witnessed in one department of the Government every endeavor to prevent the restoration of peace, harmony, and union. We have seen hanging upon the verge of the Government, as it were, a body called, or which assumed to be, the Congress of the United States, while in fact it is a Congress of only a part of the states. We have seen this Congress pretend to be for the Union when its every step and act tended to perpetuate disunion and make the disruption of the states inevitable. Instead of promoting reconciliation and harmony its legislation has partaken of the character of penalties, retaliation, and revenge. This has been the course and policy of your Government.
This impeachment of the legality of Congress was followed by a battle in the political field, which raged with increasing fury during the whole remainder of Johnson's term of office and projected itself into the two terms of President Grant and the beginning of that of President Hayes, embracing the episodes of the impeachment trial and the Liberal Republican movement of 1872. All of this turmoil, and the suffering which it brought upon the South, would, probably, have been avoided if Lincoln, with his strong hold upon the loyal sentiment of the country and his readiness to conciliate opponents, without surrendering principle, had not been assassinated. They became possible if not inevitable when the presidential chair was taken, in a time of crisis, by a man of combative temper, without prestige in the North, and devoid of tact although of good intentions and undoubted patriotism.
The Southern States refused to agree to the Fourteenth Amendment. To them the insuperable objection was the clause excluding from the office-holding class those who had taken an oath to support the Constitution of the United States and had afterwards engaged in insurrection against the same. The common people refused to accept better terms than were accorded to their leaders. This was true chivalry and is not to be condemned, but the consequence was an increase of the power of the radicals in the North. It disabled conservatives like Fessenden, Trumbull, and Grimes in Congress, John A. Andrew, Henry Ward Beecher, and William C. Bryant, influential in other walks in life, from making effective resistance to the measures of Sumner and Stevens. If the Fourteenth Amendment had been ratified by any of the other ex-Confederate States, such states would have been admitted at once as Tennessee was. Both Wade and Howard, hot radicals as they were, refused to go with Sumner when he insisted that further conditions should be exacted. When he offered an amendment looking to negro suffrage, Howard said that the Joint Committee on Reconstruction had maturely considered that question and had carefully abstained from interfering with "that very sacred right"—the right of each state to regulate the suffrage within its own limits. He argued that it was inexpedient in a party point of view to do so, and predicted that if the rebel states were coerced to adopt negro suffrage by an act of Congress, or by constitutional amendment, they would rid themselves of it after gaining admission.97